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Extraordinary General Meeting: Venue and Quorum Requirement for Private Companies

February 13, 2019     by Prasanna Nagure

Indian Companies Act empowers Board of Directors to take most of the business decisions. However, there are certain matters which affect the shareholders which can only be approved in Shareholders meeting. Some of the matters which can be proceeded with only after shareholders’ approval in their meeting are:

  • Increase in Authorized Capital,
  • Issue of shares through private/ preferential allotment,
  • Borrowing or Investments by company beyond certain limit;
  • Alteration of Articles of Association etc.

Shareholders meetings are held at any place in India. The quorum requires shareholders to be personally present at the meeting. These are certain constraints to convene and hold meeting with proper quorum at a venue, especially when shareholders are non-residents, they may not be available in India.

Due to this there were several amendments to the Companies Act, 2013 (Act) brought in by the Ministry of Corporate Affairs to ease out these constraints. These have been discussed as below.

Venue of EGM

As per Section 100:

The Board may, whenever it deems fit, call an extraordinary general meeting of the company. [Provided that an extraordinary general meeting of the company, other than that of the wholly owned subsidiary of a company incorporated outside India, shall be held at a place within India]

This amendment brought in a greater comfort to wholly owned subsidiaries of Foreign Company to conduct EGM even outside India.

Quorum for EGM

As per Section 103(1) (b), in case of a private company, two members personally present, shall be the quorum for a meeting of the company.

A member can appoint a proxy in case he is unable to attend however such proxy shall not counted for quorum. Without quorum, it will not be considered as a valid meeting and therefore, business can’t be transacted.

Relaxation from MCA to Private Companies

To overcome the above problem concerning quorum, MCA vide notification dated 5th June 2015 has specified that provisions in section 103 will not apply to a private limited company if Articles of the Company do not constrain the members to be personally present. So, a private limited Company may amend its Articles in a manner which allows proxy to be counted towards the quorum.

Sample Clause: “Two Members present in person or proxy shall be a quorum for a General Meeting. No business shall be transacted at any General Meeting unless a quorum of Members is present at the time when the meeting proceeds to business.”

Below is an easy reference table where Venue shall be any place in India and Quorum requirement shall be as under:

Sr. No EGM Quorum
1.

Indian Company where shareholders are individuals

Two members Personally present

2.

Indian Company where one shareholder is individual and the other is corporate shareholder

Individual shareholder and Authorized representative of corporate Shareholder need to be present

3

Indian Company which is Subsidiary company of Foreign company where one  shareholder is Indian Individual  and the other is Foreign Individual

Two members Personally present.

In case of Foreign Individual he can either be present at the meeting personally or

A proxy can be appointed by Foreign Individual though a Proxy wouldn’t be counted for Quorum unless a company should have in its Articles, a clause which recognizes appointment of Proxy and counting him for Quorum for EGM

(Pursuant MCA Exemption notification to Private companies date 05th June 2015)

4

Indian Company which is Subsidiary company of Foreign company where  shareholder are Individuals- Indian Corporate and Foreign Individual

Same as above

 

Indian Company which is wholly owned Subsidiary Company of Foreign Company can hold meeting outside India. Two members personally present shall be the quorum (Nominee shareholder and Authorized representative) and proxy may also be counted for quorum if Articles provides so.

A proxy wouldn’t be counted for quorum unless a company should have in its Articles, a clause which recognizes appointment of Proxy and counting him for Quorum for shareholders’ meeting.

Conclusion:

The Companies now, can take decisions at a much faster pace. The constraints of venue and availability wouldn’t prove to be hindrance where time is of the essence as meetings can be held anywhere in India or in case of wholly owned Subsidiary Company of Foreign Company -outside India.

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